VT Baptist Conv. v. Burlington Zoning Board

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-333


 Vermont Baptist Convention                   Supreme Court

                                              On Appeal from
      v.                                      Chittenden Superior Court

 Burlington Zoning Board                      May Term, 1992


 John P. Meaker, J.

 Joseph F. Obuchowski of Carroll, Obuchowski & Scribner, Burlington, for
   plaintiff-appellant

 Janet Murnane, Assistant City Attorney, Burlington, for defendant-appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J.   Plaintiff appeals a superior court judgment affirming a
 determination by the Burlington Zoning Board of Adjustment that plaintiff's
 use of its property constituted a permitted "semi-public" use under the City
 of Burlington zoning ordinance.  We reverse.
      Plaintiff serves Baptist Churches by providing program materials,
 publishing news magazines, and managing trust funds.  Its business offices
 are located on the ground floor of the property at issue, where it has
 performed its administrative functions since 1967.  The property is located
 in the "R-40" district under the zoning ordinance.  The second floor of the
 building contains three residential apartments.  Plaintiff has used the
 property for this mixed residential-commercial purpose since it purchased
 the building in 1967, but has never used the offices for worship,
 counseling, or any traditional church functions.  In 1986, a zoning
 ordinance amendment eliminated offices as a permitted use in the "R-40"
 district except under limited circumstances not applicable here.
      A prospective purchaser of the property requested that plaintiff obtain
 a determination by the City of Burlington Zoning Board of Adjustment that
 the property could continue to be used for offices.  The purchaser planned
 to use the ground floor as offices for commercial mortgage brokering while
 continuing to use the second floor as apartments.  Plaintiff contended that
 such use of the property would be permitted because plaintiff enjoyed a
 prior nonconforming use that it could convey to the purchaser.  The Zoning
 Board disagreed and classified plaintiff's use as a permitted "semi-public"
 use, which is defined by the ordinance to include nonprofit operations.  The
 prospective purchaser is a for-profit entity and therefore could not use the
 property as desired.
      Plaintiff appealed to the superior court for de novo review of the
 Zoning Board's decision.  Ruling on stipulated facts, the trial court
 granted the Zoning Board's cross-motion for summary judgment.  The court
 concluded that plaintiff's activities were "nonprofit operations" under the
 definition of semi-public use and affirmed the Zoning Board's decision.  We
 hold that plaintiff's use of its property constituted a prior nonconforming
 use.
      The zoning ordinance defines "semi-public" use as including "churches,
 membership clubs and other non-profit operations."  The Zoning Board argues
 that plaintiff's activity is a semi-public use because plaintiff is a non-
 profit organization.  However, when construing an enactment with a series
 of defining terms, we will apply the rule of ejusdem generis and the latter
 general terms will be construed to "include only those things similar in
 character to those specifically defined."  Kalakowski v. John A. Russell
 Corporation, 137 Vt. 219, 224, 401 A.2d 906, 909 (1979).  Therefore, we must
 read "non-profit operations" in light of the character of churches and
 membership clubs.  Administrative office use is not consistent with the
 general nature of churches and membership clubs because offices are not
 subject to the membership traffic associated with these operations.  This
 distinction is further supported by use of the word "semi-public," which
 implies operations that involve a degree of public interaction.  Plaintiff
 used the building as a business operation and never provided religious
 services such as worship, study, or recreation.  We conclude that "non-
 profit operations" does not include plaintiff's administrative office
 functions, and that the Zoning Board misclassified plaintiff's property use
 as "semi-public."
      The Zoning Board's position would allow the zoning ordinance to be
 construed as permitting regulation of property based on the identity of the
 owner, not the use of the land.  This result is inconsistent with the
 Legislature's grant of authority to adopt zoning regulations.  24 V.S.A. {
 4401.  See Flanders Lumber & Building Supply Co. v. Town of Milton, 128 Vt.
 38, 45, 258 A.2d 804, 808 (1969) (the zoning power of a municipality exists
 "only in accordance with, and subject to, the terms and conditions imposed
 by the State in making the power grant").  The Legislature has authorized
 municipalities to regulate the following:
         (A)  Specific uses of land, water courses and other
         bodies of water;
         (B)  Dimensions, location, erection, construction,
         repair, maintenance, alteration, razing, removal and use
         of structures;
         (C)  Areas and dimensions of land and bodies of water to
         be occupied by uses and structures, as well as areas,
         courts, yards and other open spaces and distances to be
         left unoccupied by uses and structures;
         (D)  Density of population and intensity of use.
 24 V.S.A. { 4401(b)(1).  This enumeration of power refers only to uses and
 structures, not the identity of the owner.  The fact that plaintiff's
 activities are church-related does not alter the actual use of the property.
 Furthermore, the use proposed by the prospective purchaser is the same as
 plaintiff's current use of the property.  A distinction based upon the
 identity of the owner rather than the public health, safety, morals, or
 general welfare would be invalid.  See Galanes v. Town of Brattleboro, 136
 Vt. 235, 240, 388 A.2d 406, 410. (1978) (the power to zone requires
 reference to public health, safety, morals, or general welfare).
      The trial court found persuasive the Zoning Board's argument that
 plaintiff's tax-exempt status as a public, pious and charitable organization
 supports the conclusion that plaintiff's use is semi-public.  However,
 plaintiff's tax status is not relevant to plaintiff's use of its property.
      Reversed.

                                         FOR THE COURT:




                                         Chief Justice